STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MASHOOD AKINSOMISOYE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3397

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on December 19, 1991, and on June 1, 1992.

APPEARANCES

For Petitioner: William C. Robinson, Esquire

Suite 600, Barnett Bank Building 7900 N.E. 2nd Avenue

Miami, Florida 33138

For Respondent: Jacqueline S. Banke, Esquire

Department of Health and Rehabilitative Services

201 West Broward Boulevard Room 306

Fort Lauderdale, Florida 33301-1885 STATEMENT OF THE ISSUES

The issue is whether Mr. Akinsomisoye abandoned his job with the Department of Health and Rehabilitative Services, and should be deemed to have resigned from the career service.

PRELIMINARY STATEMENT

Mashood Akinsomisoye was a career service employee with the Department of Health and Rehabilitative Services. The Department deemed him to have abandoned his position, and sent a certified letter to that effect to his post office box address, which went unclaimed and was returned to the Department on October 29, 1990. Mr. Akinsomisoye requested a formal hearing on December 10, 1990. The Secretary of the Department of Administration forwarded the case to the Division of Administrative Hearings for determination of whether Mr. Akinsomisoye abandoned his position and whether he filed a timely request for a hearing.

When the formal hearing first convened Mr. Akinsomisoye was represented by counsel but was not present; four witnesses were called by the Department, and six exhibits were introduced in evidence. The Respondent offered three

composite exhibits, one consisting of a Nigerian Airways boarding pass, the second a confirmation of the death of his mother in Nigeria on September 14, 1990, and the third a compilation of his performance appraisals. The hearing was reconvened on June 1, 1992, for the testimony of Mr. Akinsomisoye, and rebuttal testimony of the Department. No transcript of the proceedings has been filed. Both parties have filed proposed recommended orders. Rulings on proposed findings of fact are made in the appendix to this recommended order.

FINDINGS OF FACT

1. Mr. Akinsomisoye was hired in July 1988 in a career service position with the Department of Health and Rehabilitative Services as a Public Assistance Specialist II, in Economic Services, handling determinations of eligibility for food stamps at the service center in south Broward County.

   
   

2. On August 26, 1990, Mr. Akinsomisoye requested authorization for four to five weeks of annual leave, which he had earned. He intended to return to his family home in Nigeria because his father had telephoned to say that his mother was seriously ill.

   
   

3. The supervisor for Mr. Akinsomisoye, JoAnne Chamberlain, authorized only 80 hours of leave, because the Department did not have sufficient staff to cover his duties for an absence of more than that time.

   
   

4. Mr. Akinsomisoye was dissatisfied with Ms. Chamberlain's decision and first discussed the matter with her supervisor, the program operations administrator, Elizabeth Massey, and then with Ms. Masey's supervisor, the program administrator, Deborah McGowen. Both supported the position of Ms. Chamberlain that they could only approve 80 hours of leave.

   
   

5. Mr. Akinsomisoye agreed in writing on August 31, 1990, that his leave would run from September 4, 1990, at 8:00 a.m., through September 17, 1990, at 5:00 p.m. He was due back to work on the morning of Monday, September 18, 1990, at 8:00 a.m. (Dept. Ex. 4).

   
   

6. Mr. Akinsomisoye traveled to his native country of Nigeria and visited his family. While he was in Nigeria, his mother passed away on September 14, 1990. Mr. Akinsomisoye did not contact his supervisor at the HRS while he was in Nigeria during his period of approved leave.

   
   

7. On September 19, 1990, the wife of Mr. Akinsomisoye telephoned JoAnne Chamberlain at work and stated that Mr. Akinsomisoye's flight from Nigeria had been cancelled but that he hoped to return to work on September 21, 1990, and that Mr. Akinsomisoye would try to call Ms. Chamberlain at home.

   
   

8. On September 21, 1990, Petitioner's wife again contacted Joanne Chamberlain and stated that Mr. Akinsomisoye was still having difficulties obtaining a flight back to the United States and that she did not know when he would be returning back to work, but that she would call Ms. Chamberlain again when she knew more.

   
   

9. Ms. Chamberlain heard no more from Mr. Akinsomisoye's wife for one week. On October 1, 1990, Ms. Chamberlain, jointly with her supervisor, submitted a recommendation for his termination based on abandonment of his position. At 10:00 p.m. that night, Mr. Akinsomisoye called Ms. Chamberlain from Nigeria at her home. He said his mother had passed away and he hoped to be in Miami by October 5, 1990. He asked Ms. Chamberlain for an additional week of

   leave, but she offered none. She did not tell him that she had submitted the recommendation for his termination for abandonment of his job that day.

   
   

10. October 4, 1990, the Department prepared a certified letter of termination due to abandonment to Mr. Akinsomisoye addressed to his post office box. The letter was postmarked on October 5, 1990. The envelope bears markings which would indicate that slips were placed in Mr. Akinsomisoye's post office box for him to pick up the certified letter on October 9, 17, and 24, 1990. The letter was returned to the Department by the U.S. Postal Service as "unclaimed" on October 29, 1990.

11. The significant portion of the letter of termination stated: In accordance with Chapter 22A-7 of the State of

    Florida Career Services Rules and regulations, since

    you did not report to work as scheduled September 18, 1990 and you have not reported to work since that time you have abandoned your position of Public Assistance Specialist II. Your resignation was effective at the close of business September 24, 1990.

    
    

12. On November 27, 1990, Mr. Akinsomisoye did call his supervisor, Ms. Chamberlain, to tell her he was back in town and to inquire about his job. He had not received an answer to his request for an additional week of leave from Ms. Chamberlain during his late night call on October 1, 1990, when he asked for more leave, and this was his next communication with any employee of the Department.

    
    

13. Mr. Akinsomisoye testified that he returned to Miami on October 6, 1990, and that evening telephoned his supervisor, who advised him to go to his post office box, and to pick up a letter advising him of his employer's action. Mr. Akinsomisoye maintains that he did check his post office box, but found no letter. This testimony is not believable. Both Ms. Chamberlain and Ms. McGowen kept contemporaneous notes of contacts with or about Mr. Akinsomisoye and there are no entries for October 6, 1990. It is also not believable that if he had returned on October 6, 1990, a properly addressed certified letter mailed to his post office box would not have been delivered to him. That letter was returned to the Department unclaimed. Even if the letter had been mishandled by the post office, it is not believable that he would not have contacted a supervisor, or the Department personnel office in Broward County, on his job status during the period October 6, 1990, to November 27, 1990. The evidence is persuasive that Mr. Akinsomisoye returned to south Florida on November 26 or 27, 1990, not before.

    
    

14. It is also significant that Mr. Akinsomisoye has no passport bearing a stamp which would show when he returned to the United States, nor any boarding pass, airline ticket, or any other information that would demonstrate the date of his return. The preponderance of the evidence gives rise to the inference that he had not returned to the United States as of the time the certified letter was returned by the U.S. Postal Service to the Department on October 29, 1990, which would mean that he had been away from his job from the time his approved annual leave had expired on September 18, 1990, through at least October 29, 1990. The Department had received no word from Mr. Akinsomisoye, or his wife, on Mr. Akinsomisoye's whereabouts since October 1, 1990, when he telephoned Ms. Chamberlain at home and informed her of his mother's death, and requested an additional week of leave.

15. The Employee Handbook for employees of the Department of Health and Rehabilitative Services, dated October 1, 1988, was provided to Mr. Akinsomisoye when he was employed. Under the heading of Absences, at page 13, it states:

    
    

    If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned.

    
    

16. The Department requires its employees to make request for leave, to a supervisor, in advance. Leave will be approved for death in the immediate family upon request. Obviously that type of leave cannot be anticipated. Although Mr. Akinsomisoye attempted to request an additional week of leave from Ms. Chamberlain based upon his mother's death when he telephoned her from Nigeria on October 1, 1990, he returned to the United States only in late November 1990, much more than one week later.

    
    

17. It is certainly possible that Mr. Akinsomisoye could have had difficulty in obtaining a return flight from Nigeria to the United States had he left hoping to report to work on September 18, 1990. That he could not return until late November is difficult to believe. He has produced no corroborating proof of any such difficulty from Nigeria Airways showing cancellation of flights, nor information of any kind to demonstrate when he returned to the United States, either in the form of a boarding pass, or an airline ticket for his return trip, or a passport showing the date he reentered the United States.

    
    

18. Mr. Akinsomisoye was absent from his employment without authorized leave from September 18, 1990, to November 27, 1990, and the Department heard nothing from him or his wife since October 1, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

    
    

20. Neither party has challenged the jurisdiction of the Division of Administrative Hearings in this matter. No party has made any argument on whether Mr. Akinsomisoye's request for hearing was untimely, and any arguments on that issue have been abandoned.

    
    

21. The rule of the Department of Administration which governs actions for abandonment is Rule 22A-7.010(2), Florida Administrative Code, which says:

    
    

    (2) Abandonment of Position.

    (a) An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service. An employee who has Career Service status and separates under such circumstances shall not have the right of appeal to the Public

    Employees Relations Commission; however, any such employee shall have the right to petition the department [of Administration] for a review of the facts in the case and a ruling as to whether the circumstances constitute abandonment of position.

    
    

22. The presumption of abandonment found in the rule is a rebuttable one. Mr. Akinsomisoye has failed to rebut that presumption here.

    
    

23. The testimony of Ms. Chamberlain that on November 27, 1990, Mr. Akinsomisoye telephoned her to say that he was back in town and requested information about his employment status with the Department is consistent with the inability of the U.S. Postal Service to deliver the properly addressed certified letter concerning his employment status, and the failure of Mr. Akinsomisoye to be able to produce a passport, receipts for airline tickets, any confirmation from Nigeria Airways of its flight schedule during September, October and November of 1990, or the testimony of any third party concerning his difficulty in obtaining a flight back to the United States. His inquiry about his employment shows an awareness that his job would be in jeopardy.

    
    

24. Taken together, the evidence shows that Mr. Akinsomisoye traveled to Nigeria from approximately September 4, 1990, through November 26 or 27, 1990, a period of approximately 70 calendar days, or ten weeks. He knew that he had only been approved for two weeks leave. Although he requested additional leave on October 1, 1990, he only asked for one more week. The failure of Mr. Akinsomisoye to have contacted the Department at all from October 1, 1990, when he communicated with his supervisor for the last time, until he called Ms. Chamberlain in later November 1990 was a very significant period during which the Department heard nothing from him. The Department would reasonably have concluded that he had abandoned his position from the objective evidence. There is insufficient evidence that Mr. Akinsomisoye was prevented from returning to work when he was due back on September 18, 1990, and no evidence at all that he was prevented from returning by October 7, 1990, when the additional week of leave he requested from Ms. Chamberlain in his telephone call on October 1, 1990, would have expired. The facts here are consistent with abandonment of position, even without utilization of the rebuttable presumption of resignation by abandonment found in Rule 22A-7.010(2), Florida Administrative Code. An agency must be able to replace an employee whose actions are consistent with abandonment of his position. The period involved here, from October 1, 1990, to November 27, 1990, where the Department did not hear from Mr. Akinsomisoye was so long that it was reasonable to treat his absence as an abandonment. See Cook

v. Division of Personnel, Department of Administration, 356 So.2d 356, 358 (Fla. 1st DCA 1978), and Handley v. Department of Administration, 411 So.2d 184, 188 (Fla. 1982).

RECOMMENDATION

It is recommended that a final order be entered by the Secretary of the Department of Administration finding that Mr. Akinsomisoye abandoned his career service position, and is not eligible to be reinstated with the Department of Health and Rehabilitative Services, or to receive any back pay.

RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of June 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3397

Rulings of Findings proposed by the Department.

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 2 through 5.

3. Adopted in Findings of Fact 2 and 6. 4(a). Adopted in Finding of Fact 7.

4(b). Adopted in Finding of Fact 8.

1. Adopted in Findings of Fact 9 and 10.

2. Adopted in Finding of Fact 10.

3. Adopted in Finding of Fact 15. 8(a). Adopted in Finding of Fact 16.

8(b). Adopted in Findings of Fact 11 and 18. Rulings of Findings proposed by the Mr. Akinsomisoye.

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 2 and 5.

3. Adopted in Finding of Fact 6. Mr. Akinsomisoye called his supervisor only on October 1, 1990, however, not before his leave expired on September 18, 1990. See Finding 9.

4. Rejected as inconsistent with the more persuasive evidence. Mr. Akinsomisoye did not return until shortly before November 27, 1990. See Finding 12 and the reasons for rejecting the testimony set out in Finding 13.

5. Generally adopted in Finding of Fact 12. Ms. Chamberlain did not authorize additional leave because she knew that the Department had already begun termination proceedings, which she had initiated. Although annual leave must ordinarily be approved in advance, that is not true for family leave arising from the death of a family member. That leave might have been approved, but was not. In view of the very substantial lapse of time from the leave request made on October 1, 1990, until Mr. Akinsomisoye again contacted the Department on November 27, 1990, the failure of Ms. Chamberlain to have approved the leave ordinarily available for the death of a close family member is not significant.

6. Adopted in Finding of Fact 15.

7. Adopted in Finding of Fact 16, but the final sentence is rejected for the reasons stated in Finding of Fact 17.

8. Rejected, see Finding of Fact 18. By November 27, 1990, he no longer had a job. November 27, 1990, is the first time the Department heard from Mr. Akinsomisoye since October 1, 1990, when he requested additional leave.

COPIES FURNISHED:

William C. Robinson, Esquire Suite 600, Barnett Bank Building 7900 N.E. 2nd Avenue

Miami, Florida 33138

Jacqueline S. Banke, Esquire Department of Health and

Rehabilitative Services

201 West Broward Boulevard Room 306

Fort Lauderdale, Florida 33301-1885

John A. Pieno Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Augustus Aikens, Jr.

General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

John M. Carlson, Esquire Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003397

Orders for Case No: 91-003397